Some East Mesa residents want to take city to court

LAS CRUCES >> City government's attempts to rezone a property near the corner of Indian Hollow Road and East Lohman Avenue, and to get nearby residents to help pay for the closure of a portion of a road adjacent to that property, will be challenged in state District Court.

Las Crucens William Beerman, James Fahrbach, Armena Taylor and members of the Northeast Foothills Neighborhood Association have filed a lawsuit in New Mexico's Third Judicial District Court, in Las Cruces, to appeal the Las Cruces City Council's decision, on Sept. 17, 2012, to conditionally rezone a 1.5 acre parcel at 3830 E. Lohman Ave., near Indian Hollow Road, where a proposed grocery store would have been built.

"This appeal is timely because of extenuating circumstances regarding the final agency (City Council's) decision," said a portion of the lawsuit, filed July 10. "After City Council appeased opponents of the zone change by making closure of Indian Hollow Road a material condition of the zone change ordinance, city officials, including City Manager (Robert) Garza, subsequently decided to renege on the road closure and reopen the road, contending they could do so administratively without any further action by City Council to amend or rescind the conditional zone change ordinance."

The lawsuit names City Council, Mayor Ken Miyagishima, and Garza as defendants. A hearing date for the lawsuit has not yet been set.

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"We just believe that the city's actions are wrong," Taylor said.

On Sept. 17, 2012, the council voted to rezone the property at 3830 E. Lohman as C-3C, high intensity commercial. There were plans to build and operate a grocery store at that location, but those plans changed and owners of the store decided to relocate elsewhere. On Monday, the seven-member council unanimously approved a license for a package liquor store that will open there instead.

Neighbors and members of the Northeast Foothills Neighborhood Association expressed numerous concerns to the council in September 2012 that increased traffic as a result of the rezoning would be detrimental to traffic safety in their neighborhood. As a result, the council placed a condition on the rezoning to close a portion of Indian Hollow Road adjacent to the rezoned property, to prevent vehicles from cutting through nearby residential streets.

The city closed Indian Hollow Road on Feb. 4. But there was reconsideration after some neighbors claimed the road's closure was negatively impacting traffic on other nearby residential streets.

"The Mayor arbitrarily and capriciously declared at a City Council meeting on June 17 that Indian Hollow would be reopened unless neighborhood residents promised to pay $25,000 to $35,000 to install a cul-de-sac on Indian Hollow," a portion of the lawsuit said. "The Mayor gave residents a deadline of 30 days ... to commit the funds."

City Attorney Harry "Pete" Connelly said he could not comment on pending litigation before the city. Howeever, before the lawsuit was filed, Garza said the condition placed on the council's approval of the rezoning was appropriate.

"Since the zoning condition required a developer to build the cul-de-sac as the result of the added commercial traffic that was anticipated, that decision clarified that a private party had to make those improvements, not the city," Garza said. "We no longer have a proposed development, so the 30-day offer was given to 'anyone' who is willing to pay for the (road) closure, not specifically any person or residents.

"There are no further City Council meetings scheduled on this subject; the rest of the work is administrative in nature."

Garza added other actions by the city will be taken to ease traffic problems that could arise in that area.

"Since we have been contacted by numerous residents with concerns of pass-through traffic and speeding with the roadway opened, we are going to implement some traffic calming measures including (the) installation of some raised medians and curb extensions, both designed to narrow the driving lanes and cause a reduction in speed and volume of vehicles," Garza said. "This work will be initiated after the 30-day period and will be completed on both Indian Hollow and Chimney Road prior to the removal of the temporary jersey barriers.

"These measures have been used successfully in other areas and we are confident they make good sense for this situation as well."

Until the court has ruled on the appeal, a motion to keep Indian Hollow Road closed to through traffic is also being sought in the lawsuit.